Monthly Archives: March 2018

This morning, the High Court ended Eddie Obeid’s formal challenge to his conviction for misconduct in public office, refusing the former MP special leave to appeal to the nation’s apex court. He wasn’t alone in being disappointed. There were just six matters listed for oral hearing today (compared to thirteen a month ago) and only one application was granted) compared to six a month ago. On the other hand, the Court had already granted special leave in two matters on the papers this Wednesday, albeit out of around fifty dealt with without a hearing.)

The three cases where the Court will hear appeals some time this year are: Continue reading →

The High Court unanimously allowed an appeal from a decision of the Full Court of the South Australian Supreme Court regarding the power of a court to set aside one of its own perfected judgments on the basis of misconduct falling short of fraud. It was held that for the equitable power to set aside a judgment required actual fraud by the party who succeeded at trial, and such fraud had not been adequately proven or pleaded in this case. However, it was not necessary for the party seeking to set aside the judgment to exercise reasonable diligence to discover the fraud. Continue reading →

The High Court has answered questions in a stated case brought by a common informer challenge to the capacity of a member of the House of Representatives elected at the July 2016 federal election. Section 3 of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) provides that any person who has sat in Parliament ‘while he or she was a person declared by the Constitution to be incapable of so sitting’ is liable to pay ‘any person who sues for it in the High Court’ a sum of money. The defendant was declared elected as a member of the House of Representatives on 20 July 2016. On 7 July 2017, the plaintiff commenced proceedings under the Common Informers Act, contending that the defendant was incapable of sitting as an MP because he holds shares in a company that leased premises to Australia Post, contrary to s 44(v) of the Constitution. After a query about whether the High Court has jurisdiction to decide the anterior question of the defendant’s eligibility to sit as an MP, Bell J formulated the questions for the Full Court as follows:

(1) Can and should the High Court decide [in this proceeding] whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the [Common Informers Act]?

(2) If the answer to question (1) is yes, is it the policy of the law that the High Court should not issue subpoenas in this proceeding directed to a forensic purpose of assisting the plaintiff in his attempt to demonstrate that the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the Common Informers Act?

The Court unanimously answered Question 1 ‘no’, and consequently it was not necessary to answer Question 2.

The joint judges (Kiefel CJ, Bell, Keane and Edelman JJ) held that whether the defendant is incapable of sitting as an MP is a question to be determined by the House of Representatives, unless it resolves to refer the matter to the Court of Disputed Returns. This answer to Question 1 is determined by ss 46 and 47, and their relation to s 44, of the Constitution. Section 46 Continue reading →

The High Court, sitting as the Court of Disputed Returns, has decided a matter referred to it by the Senate over the eligibility of two South Australian senate nominees. Skye Kakoschke-Moore and Timothy Storer who were third and fourth in the Nick Xenophon Team order of senate candidates for the 2016 federal election. Following that election, on 4 August, Kakoschke-Moore was returned as a senator for South Australia. On 3 November 2017, NXT resolved to expel Storer from the party, and by 6 November he purported to resign from the party. On 22 November, Kakoschke-Moore resigned as a senator after receiving confirmation from the United Kingdom Home Office that she was a British citizen. The Senate then resolved on 27 November to refer to the High Court the question of whether, by reason of s 44(i) of the Constitution, which provides that any person who is a subject or citizen of a foreign power shall be incapable of being chosen as a senator, there was a vacancy in the Senate for the place for which Kakoschke-Moore was returned. On 30 November, Kakoschke-Moore submitted the form to renounce her UK citizenship, and received confirmation on 6 December from the Home Office that her renunciation was effective on that date.

On 24 January 2018, Nettle J declared that Kakoschke-Moore was incapable of being chosen or sitting by reason of s 44(i). Nettle J also reserved three further questions for the Full Court’s determination, which the Court answered on 13 February (see order below), delivering its reasons on 21 March.

The Court unanimously held that the vacancy left by Kakoshcke-Moore should be filled by a special count of the votes cast on 2 July 2016; that Kakoschke-Moore’s renunciation of her British citizenship in December 2017 does not render her capable of now being chosen to fill the vacancy; and that Storer should not be excluded from the special count.

On questions one and two, the Court rejected Kakoschke-Moore’s contentions that the Court should declare her elected because she has now renounced her Continue reading →

The High Court has unanimously dismissed appeal against a decision of the Queensland Court of Appeal on a defendant’s decision not to testify in the context of a domestic violence murder conviction. Although he told his solicitors that the killing was an accident that occurred after the victim attacked him, his defence at trial instead relied on his police interview that described the killing as a deliberate attack that occurred in the heat of the moment. The defendant’s reasons for not testifying were evidenced in the following signed instructions he gave to his solicitor before the trial:

I am not relying on self defence or provocation as defence for tactical or legal reasons. Firstly, I did not raise these defences in my interview to police and secondly it would require me to give further evidence if such defences were to be raised. I have already given my preliminary view that I do not wish to give evidence as I do not want to be cross-examined about my previous criminal history.

On appeal, the defendant’s trial counsel explained that the advice was based on a number of contingencies that might arise during the defendant’s testimony – imputations against the police or the victim, assertions of his good character or the substance of his defence that the killing was an accident – which might allow the introduction of his earlier conviction for a home invasion where a person was fatally stabbed, but admitted that he had not told the defendant that the trial judge would have to give leave for that to occur. The QCA held that the trial counsel’s advice was incorrect, but dismissed the defendant’s appeal because the decision not to testify was a sound, forensic decision where the wrong advice was merely ‘an additional, but inaccurately expressed, reason’.

A unanimous High Court consisting of all seven judges rejected the defendant’s argument that he could not be held to a forensic decision that was informed by incorrect legal advice. Continue reading →

The High Court, sitting as the Court of Dispute Returns, has answered a question referred to it by the Senate on eligibility of being chosen under s 44 of the Constitution. The reference originally concerned then-Senator Jacqui Lambie’s eligibility under s 44(i), but following her resignation it focused on the eligibility of Steven Martin, another Senate candidate who, following a special count, was chosen to fill Lambie’s vacancy. The matter then focused on s 44(iv), which provides that ‘[a]ny person who … holds any office of profit under the Crown … shall be incapable of being chosen or of sitting as a senator’. Martin holds the office of mayor and councillor of Devonport City Council, a local government corporation established under the Local Government Act 1993 (Tas).

On 6 February 2018, the Court held that Martin was not incapable of being chosen or of sitting as a senator by reason of s 44(iv), and delivered its reasons for that answer on 14 March. The joint judges (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) first emphasised the importance of s 45(i), which provides that if a senator becomes subject to any of the disabilities in s 44, that senator’s place ‘shall thereupon become vacant’ (at [6]). The temporal relationship between ss 44 and 45 is the process of ‘being chosen’ in s 44 remains incomplete until a person not subject to a s 44 disability is validly returned as elected, whereas s 45 operates to vacate the place of a person validly returned who later becomes subject to a s 44 disability (see [7]). In this matter, there was no dispute that ‘the Crown’ refers to the executive government of a State, and no dispute that the offices of mayor and councillor in Tasmania are each an ‘office of profit’ (at [9]). The sole issue was whether those offices are ‘under’ the executive government of Tasmania (at [10]–[12]).

The joint judges then turned to the pre-Federation history of s 44(iv), noting that nothing in that history suggests it had a technical meaning at Federation, and that nothing in the drafting history suggests there was any significance for that choice of words (at [17]). Consequently, the joint judges saw pre-Federation history as ‘more enlightening as to the purpose of the disqualification’, Continue reading →

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on whether a local council can enforce planning conditions that were agreed by a previous land owner when the land was subdivided. Section 245 of the Sustainable Planning Act 2009 (Qld) provides that

(1) A development approval (a) attaches to the land the subject of the application to which the approval relates; and (b) binds the owner, the owner’s successors in title and any occupier of the land.

(2) To remove any doubt, it is declared that subsection (1) applies even if later development, including reconfiguring a lot, is approved for the land or the land as reconfigured

In 2009, the Townsville City Council approved a subdivision on the condition that the then-owner register an easement to allow pedestrian, vehicle and utilities access to the back-lot, which the owner never did. That decision was made under the Integrated Planning Act 1997 (Qld), s 3.5.28 of which is substantially reproduced in s 245. When the subdivision was registered and both lots later sold, the Queensland Planning and Environment Court granted the new back-lot owner an ‘enforcement order’ to prevent the new front-lot owner from committing a ‘development offence’ by not registering the utilities easement. The QCA unanimously quashed the order on the basis that the Council’s subdivision conditions did not attach to the land following the subdivision.

The High Court (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) unanimously allowed the appeal, holding that s 245 obliges a successor to title after a reconfiguartion to comply with the condition of the approval of that recondition even if it was not satisfied by the original owner, and that QPEC may make an enforcement order requiring the successor to fulfil that condition.

After reviewing the facts (at [3]ff), the statutory provisions (at [8]ff), and the decisions of the lower courts (at [15]ff), and the submissions of the parties (at [28]ff), the Court ruled that the appellants’ second submission — that even if the respondents were not a party to the development approval, that does not preclude an enforcement order from being made against them — Continue reading →

The High Court dismissed, by majority, an appeal against a decision of the Western Australian Court of Appeal on a conviction and sentencing for drug importation. The appellant was convicted for attempted possession of 5kg of methylamphetamine with intent to sell or supply them to another, after police intercepted the drug shipment in two tool cases, substituted salt for the drugs, and then surveilled a Perth man take the cases home and unpack them in front of the appellant. The trial judge directed:

I’m now going to deal with the fourth element upon the jury aid, that the accused intended to sell or supply the prohibited drug or any part of it to another. Members of the jury, you can give that element a tick. It is not an issue for you in this trial.

The WASCA dismissed the appeal, holding that, although this direction was incorrect (as a statutory presumption of intent to sell or supply did not apply to the offence of attempted possession), the so-called ‘proviso’ to Western Australia’s criminal appeal statute (that the Court ‘may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred’) applied.

The High Court formed a bench of seven judges to address the meaning of its 2005 precedent on the ‘proviso’, Weiss v The Queen, which held:

No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.

The appellant argued that the WASCA’s approach that regards the ‘negative proposition’ as determining the application of the proviso unless there was a ‘fundamental’ error of ‘process’ either ‘misapplies the principles explained in Weiss or, if it does not, Weiss should be qualified or overruled.’ The Court unanimously declined to overrule Weiss, but divided on whether the ruling was correctly applied in this case. Continue reading →

The High Court unanimously dismissed an appeal against a decision of the Queensland Court of Appeal on the defence of accident to a grievous bodily harm conviction. The appellant and his former business partner fell out over business dealings and an adultery claim, leading to a fight in a Gold Coast shopping mall. The jury convicted the appellant of grievous bodily harm for breaking the victim’s hip after shoving him over, but acquitted him of another charge that he kicked the victim while he was on the ground. The defence of accident in s23 of Queensland’s Crimninal Code states (emphasis added):

(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—
…

(b) an event that— (i) the person does not intend or foresee as a possible consequence; and (ii) an ordinary person would not reasonably foresee as a possible consequence.
Example: Parliament, in amending subsection (1) (b) by the Criminal Code and Other Legislation Amendment Act 2011 , did not intend to change the circumstances in which a person is criminally responsible.
(1A) However, under subsection (1) (b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality.

The QCA rejected the appellant’s claim that the hip fracture fell within s23(1)(b) in the following terms (emphasis added):

A jury may well have considered that an ordinary person in the position of the appellant could not have reasonably foreseen the complainant would in those circumstances suffer a fractured hip. That, it seems, was the trial judge’s view. But that is not the test for this Court. It was equally open to the jury on the evidence to reach the contrary conclusion, that an ordinary person in the position of the appellant could have foreseen that the complainant might suffer a serious injury such as a fractured hip from such a forceful push. The resolution of the issue was a matter for the jury. They had the advantage of seeing the height and build of the 55 year old complainant and appellant. Assuming they were of average build and height, the appellant’s push of the complainant, necessarily on the medical evidence forceful, on a slight downward sloped tiled ramp, could foreseeably result in the complainant falling badly and seriously injuring himself, even breaking his hip. Such a result was not theoretical or remote.

After reviewing the whole of the evidence, I am satisfied that the jury verdict of guilty of grievous bodily harm was not unreasonable and against the weight of the evidence. It was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. It follows that I would dismiss the appeal against conviction.

The High Court (Kiefel CJ, Bell, Gageler, Nettle & Gordon JJ) held (at [44]) that s23(1)(b)’s reference to ‘would’ ‘involves a degree of probability, albeit that it need not be more likely than not, whereas’ the QCA’s referrence to ‘could’ ‘is a matter more akin to mere possibility’ and hence was ‘prone to lead to error in the application of s 23(1)(b)(ii)’ and ‘the practice should not be repeated’.However, the Court noted (at [45]) that the trial judge directed the jury in the correct terms and ‘there is no reason to doubt that the jury adhered to those directions, or cause to doubt the reasonableness of the verdict on that basis.’

If you’re a construction lawyer or construction industry professional, by now you’ve probably heard about the recent High Court decision in Maxcon Constructions Pty Ltd v Vadasz[2018] HCA 5 (‘Maxcon’) (handed down at the same time as the decision in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4). Most commentators have focused on the judicial review issue which arose in both of those cases. However, the High Court in Maxcon also determined that a provision in a construction agreement which allowed a head contractor to withhold retention moneys under a subcontract until certain events had occurred under the head contract was a ‘pay when paid’ provision, and was therefore not legally enforceable under the security of payment (SOP) legislation. (See Kiefel CJ, Bell, Keane, Nettle and Gordon JJ at [16]–[29]. Gageler J at [32] and Edelman J at [41] agreed with the conclusions of the plurality regarding the operation of the SOP legislation, but did not consider the issue determinative of the appeal).

In this instance, the relevant SOP legislation was the Building and Construction Industry Security of Payment Act 2009(SA) (‘SA SOP Act’), but most other States apart from Western Australia and the Northern Territory have similar provisions to the SA SOP Act. Thus, the decision has potentially broad implications for head contractors, not only in relation to retention provisions, but also in relation to other provisions which attempt to make a payment under a subcontract contingent upon an event occurring under the head contract. Head contractors may need to review their subcontracts to ensure that they don’t inadvertently contain ‘pay when paid’ provisions as a result of this decision. Continue reading →